(am, 

#Z53 


Minority  report 
Conf  Pam  12mo  #259 


Min.  Rep.  Joint  Select  Com.]  [Adj.  Ses.  1  864, 


Reported  by  Mr.  Hall,  of  New-Hanover. 
W.  W.  Holden,  Printer  to  the  State. 


MINORITY  REPORT  UPON  THE  SUBJECT  OF  THE 
SUSPENSION  OF  THE  WRIT  OF  HABEAS  CORPUS. 

The  undersigned,  one  of  the  committee  on  the  part  of  the 
Senate,  to  whom  was  referred  that  portion  of  the  Governors 
Message  touching  the  repeal  of  the  act  of  Congress  suspend- 
ing the  privilege  of  the  writ  of  habeas  corpus,  not  concurring 
in  the  views  embodied  in  the  resolutions  submitted  by  the 
chairman  of  that  committee,  begs  leave  to  submit  the  fol 
lowing  report: 

In  this,  the  very  crisis  of  our  destiny,  when  our  fate  as  a 
free  people  hangs  trembling  in   the  balance,  when  every  en- 
ergy, every  resource,  and  entire  unanimity  among  our  people 
is  indispensably  requisite  to  hurl  back  the  present  gigantic, 
and,  as  we  trust,  final  assault  of  the  enemy,  I  deem  that  the 
paramount  duty  of  this  Legislature,  with  a  view  to  our  speedy 
independence,  is  to  strengthen  the  Executive  arm,  to  provide 
for  supplies  and  reinforcements  to  the  army,  and  to  care  for 
the  wants  of  the  families  of  our  soldiers ;  and  that  the  intro- 
duction of  other  subjects  of  legislation  at  this  time,  tending 
to  question  the  patriotism  and  ability  of  our  Confederate 
rulers  and  legislators,  leading  to  debates  of  a  party  and  po- 
litical character,  and  enuring  to  distractions  and  divisions  of 
sentiment  among  our  people,  is  unwise,  ill-timed,  impolitic, 
and  fraught  with  danger  to  our  cause.     Nor  does  he  accept 
as  true,  facts  stated  in   the  resolutions.     He  denies  the  re 
peated  and  manifest  infractions  of  the  Constitution  by  the 
Congress  of  the  Confederate  States,  and  has  yet  to  be  pointed 


2  Minority  Report.  L^dj.  Session 

♦  o  a  single  instance.  If  reference  be  made  to  the  acts  for 
conscription,  the  anti-substitute  law,  and  the  law  for  impress- 
ments, the  answer  is,  that  the  courts  of  the  country  are  the 
only  competent  tribunals  to  decide  upon  the  u  a  constitution- 
ality of  these  measures;  and  that  by  every  supreme  judicial 
tribunal  in  the  States  of  the  Confederacy,  in  which  this 
question  has  been  tested,  these  laws  have  been  declared  to 
be  constitutional.  Neither  does  he  admit,  as  stated  in  the 
second  resolution,  that  the  act  to  suspend  the  privilege  of  the 
writ  of  habeas  corpus  "clothes  the  Executive  with  judicial 
functions  which  Congress  cannot  constitutionally  confer  even 
on  the  judiciary  itself,  and  set  at  naught  the  most  emphatic 
and  solemn  guarantees  of  the  Constitution." 

The  power  in  Congress  to  suspend  the  privilege  of 
the  writ  when  in  cases  of  invasion  or  rebellion  the 
public  safety  may,  in  its  opinion,  require  it,  is  indisputa- 
ble. If  it  be  contended  that  the  act  in  question  is  un- 
constitutional for  the  reason  that  it  justifies  arrests  other 
than  upon  judicial  warrants  supported  by  oath  or  affirma- 
tion, and  is  in  derogation  of  some  of  the  other  safeguards 
of  personal  liberty  as  engrafted  upon  our  Bill  of  Rights 
and  Constitution  from  the  English  Magna  Charta  and  Bill 
of  Rights,  the  answer  is  to  be  found  in  the  fact  that  these 
provisions  wrere  meant  to  apply  to  a  nation  at  peace  with 
foreign  powers,  and  in  the  enjoyment  of  domestic  tranquility  ; 
and  the  very  grant  in  the  same  instrument,  the  Constitution, 
of  the  power  of  Congress  to  suspend  the  privilege  of  the 
great  writ,  carries  with  it  necessarily,  and  to  make  such  sus- 
pension effectual,  the  suspension  for  the  time  being  of  these 
personal  privileges.  In  times  of  imminent  deadly  peril  to 
the  nation,  when  its  very  existence  is  jeoparded,  these  ordi- 
nary peronal  privileges  must  be  sacrificed,  and  are  made 
subservient  and  subordinate  to  the  safety  and  existence  of 
the  nation  and  government.  The  Executive  must  be  author- 
ized to  act  promptly  ;  and  the  imperative  necessities  of  the 
case,  the  good  of  the  whole  demand  that  the  ordinary  for- 
malities of  the  Law,  with  its  inevitable  delay  should,  for  the 


t$64.]  Minority  Report. 

crisis,  be  dispensed  with.  The  suspension  of  fhe  privilege 
of  the  writ  is  an  extraordinary  measure — extrajudicial  in  its 
character,  and  to  be  resorted  to  only  in  cases  of  dire  emergency. 
Its  exercise  is  incompatible  with  the  personal  privileges  vouch- 
safed to  the  individual  in  other  sections  of  the  Constitution, 
and  when  the  emergency  arises  these  personal t  privileges 
must  be  suspended. 

It  is  indisputable  that  in  England,  from  whence  mainly  we 
derive  our  ideas  of  personal  liberty,  as  embodied  in  her  Bill 
of  Rights  and  Magna  Charta,  during  the  many  and  different 
periods  in  which  the  privilege  of  the  writ  has  been  suspend- 
ed, in  the  large  majority  of  cases,  where  arrests  were  made, 
they  were  made  by  military  authority,  or  by  warrants  issuing 
from  the  Home  Secretary  or  other  departments  of  State  by 
order  of  the  Executive  branch  of  the  government,  and  not 
by  virtue  of  judicial  wai rants  supported  by  oath  or  affirma- 
tion. The  undersigned  further  construes  the  3d  section  of 
the  act  referred  to  by  which  the  President  "shall  cause 
proper  officers  to  investigate  the  cases  of  all  persons  arrested," 
as  a  provision  for  their  benefit,  and  to  ensure  them  more 
speedy  discharge  if  improperly  detained,  than  they  could 
otherwise  obtain  in  due  course  of  law. 

The  undersigned  submits  that  if  the  third  resolution  means 
anything,  it  means  that  in  no  event,  nor  under  any  possible 
circumstances,  can  the  suspension  of  the  privilege  of  the 
writ  of  habeas  corpus  be  necessary  or  justifiable.  This  im- 
pugns the  wisdom  of  the  very  framers  of  our  constitution, 
for  if  such  be  the  case,  whence  the  propriety  or  necessity  of 
making  an  express  provision  for  its  suspension,  by  conferring 
upon  Congress  the  power  in  certain  cases  to  suspend  it? 

The  undersigned  understanding  that  only  such  portions  of 
the  Governor's  message  as  referred  io  the  act  suspending  the 
privilege  of  the  writ  of  habeas  cor,>us,  was  referred  to  the 
committee  of  which  he  constituted  a  part,  does  not  feel  at 
liberty  to  consider  and  report  upon  the  subject  matter  of  the 
4th  Resolution,  especially  as  anothr:  eommitteee  has  beer, 
appointed  to  whom  thai  subject  was  specially  referred.     But 


4  Minority  Report.  [Adj.  Session. 

in  order  that  his  position  may  not  be  misunderstood,  he  takes 
occasion  to  deny  that  the  aci  "  to  organize  forces  to  serve 
daring  the  war"  6l  embraces  every  State  officer  in  all  the  de- 
partments Executive,  Legislative  and  Judicial,"  for  Congress 
expressly  exempts  from  its  provisions  these  very  officials,  be- 
sides all  others  whom  the  Governor  of  any  State  may  certify 
to  be  necessary  in  the  administration  of  the  State  govern- 
ment. While  the  constitutionality  of  the  conscription  acts  has 
been  affirmed  by  the  Supreme  Courts  of  almost  every  State 
in  the  Confederacy,  it  has  been  denied  by  no  single  one,  and 
he  is  of  opinion  that  at  this  time,  while  our  enemies  are  seek- 
ing to  subjugate  and  ruin  us  by  sheer  force  of  numbers,  that 
the  organization  of  a  reserve  force  composed  of  those  be- 
tween 17  and  18,  and  45  and  50  years  of  age,  was  eminently 
necessary,  wise  and  expedient. 

He  therefore  respectfully  submits  that,  in  any  event,  the 
constitutionality  ot  the  act  to  suspend  the  privilege  of  the 
writ  of  habeas  corpus  is  a  question  purely  for  the  courts.  "We 
sit  here  as  Legislators,  not  as  Judges.  Let  our  Supreme 
Court  decide,  it  is  its  province,  not  ours ;  and  any  formal 
judgment  of  this  Legislature  upon  that  point  is  an  assump- 
tion of  power  upon  its  part,  is  a  departure  from  the  exercise 
of  its  legitimate  functions,  and  in  the  words  of  one  of  the 
resolutions,  "violates  the  fundamental  maxim  of  republican 
government,  which  requires  a  separation  of  the  departments 
of  power."  Nor  does  he  deem  it  incumbent  upon  this  body, 
especially  at  a  time  like  the  present,  to  express  by  legislative 
action  any  opinion  as  to  the  propriety  or  expediency  of  the 
passage  of  this  act.  It  was  passed  by  our  representatives  in 
Congress,  who  were  the  sole  judges  of  its  necessity,  and  it 
was  passed  by  them,  as  they  stated,  upon  information  laid 
before  them  of  conditions  of  public  danger  which  rendered 
their  action  eminently  necessary  and  proper.  If  its  opera- 
tion were  confined  to  our  own  State  only,  we  might  be  jus- 
tified in  the  expression  of  an  opinion  as  to  its  expediency. 
But  its  operation  is  co-extensive  with  the  limits  of  ihe  Con- 
federacy.    How  are  we  to  know  what  conditions  tff  danger 


18G4.J  Minority  Report.  5 

existed  in  Louisiana,  Tennessee,  or  elsewhere?  Do  we  ever* 
know  the  condition  of  danger  in  our  own  State,  upon  which 
Congress  may  have  been  thoroughly  and  accurately  informed  ? 
How  then  can  we,  in  ignorance  of  the  facts  and  causes  upon 
which  this  legislation  was  based,  declare  it  to  have  been  in- 
expedient and  improper? 

Finally,  the  undersigned,  though  favoring  the  doctrine  of 
a  strict  construction  of  the  constitution,  and  zealous  in  his 
devotion  to  the  rights  and  sovereignty  of  the  States,  is  un- 
able, under  present  circumstances,  to  foresee  the  manifold 
dangers  and  perils  attending  a  temporary  suspension  of  the 
privilege  of  the  writ  of  habeas  corpus,  so  graphically  portrayed 
in  the  resolutions  referred  to.  Ele  has  entire  confidence  in 
the  ability,  wisdom,  moderation  and  patriotism  of  our  Execu- 
tive, the  President  of  the  Confederate  States,  and  does  not 
believe  that  the  power  conferred  upon  him  by  the  act  in 
question  will  be  wielded  by  him  to  individual  oppression  or 
otherwise  than  for  the  internal  peace,  safety  and  honor  of 
these  Confederate  States. 

He  therefore  respectfully  lecommends  the  adoption  of  the 
following  resolution. 

All  of  which  is  respectfully  submitted  : 

ELI  W.  HALL, 


resolution  accompanying  the  minority 
report  from  the  joint  select  committee 
on  habeas  corpus. 

Resolved^  That  in  the  present  critical  juncture  of  our 
affairs,  it  is  inexpedient  for  the  Legislature  of  North  Carolina 
to  express  any  opinion  upon  the  recent  legislation  of  Con- 
gress touching  the  suspension  of  the  privilege  of  the  writ  of 
habeas  corpus. 


Hollinger  Corp. 
PH8.5 


